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It’s that special time of year again when I have just submitted the final grades for my Law & Social Media class at the University of Texas School of Law. Hard to believe that I’ve been teaching it for five years now but every year brings something new to the area. This year’s exam was inspired by some recent events, the Gabbing Geek podcast, and a few too many detective movies (well, really, all the Dresden Files books). How would you have done?

Question One

She keeps looking out the dirty windows to make sure her Tesla isn’t being broken into. Your office is in that part of town, a part that she normally won’t be caught dead in. But here she is now.

“Mind if I smoke?” she asks, tapping on a silver cigarette holder that you thought only existed in black and white hard-boiled detective films.

“Yeah.” You toss your thumb to point at the giant “NO SMOKING” sign on the wall behind you. Right next to the “Social Media Fixer, Inc.” sign you used to hang on the outside door but too many people kept marking it up.

“They said you could help me,” she says in disbelief. Looking around the threadbare office, she looks like she’s been the victim of an online prank.

“Maybe,” you tell her. “Don’t judge me by the offices. I’m a big deal on Instagram. That was a joke.” You offer the last part because you’re not sure if she’s ever heard a joke, judging on the look she’s giving you. Or maybe you’re just telling it wrong.

“Fine,” she settles back into her chair. An impressive feat because you know how uncomfortable that chair feels. “I run an incredibly successful social media platform called Modular Academic Dreams Exist, Uniquely Personal. But everyone just calls it MADE-UP. We have hundreds of millions of users around the world. We allow them to share content with each other, interact with their friends’ posts, and even schedule events.”

“So, like Facebook,” you respond.

“Yes, but MADE-UP. Anyway, when we first launched we had one sentence for our Terms of Use: ‘Be cool.’ But now we realize that we need a more…robust document.”

“Might help,” you offer.

“Right. But I’m really not sure where to start. And I need to convince my Board of Directors to make the change. Could you give me some advice? Maybe start with three of the most important parts of the Terms of Use we should create, and some kind of strategy for rolling out those changes? Something I can take back to my Board because…” she glances out the window, “I doubt they’ll want to come here.”

Question Two

Six months later, the MADE-UP CEO is back in the uncomfortable chair. She left the Tesla at home this time, electing to take a taxi since Uber and Lyft still haven’t come back to this part of town. She looks about as comfortable as last time but just the fact that she’s back means you gave her good advice and she knows it.“Those Terms you wrote are great,” she says. “Okay, more than great. They’ve

“Those Terms you wrote are great,” she says. “Okay, more than great. They’ve really helped us out of some problems and our outside counsel say that without those Terms we would’ve been in a lot of trouble.” You try not to look too hurt to discover she’s hired other lawyers.

“But the one argument our other lawyers” ouch “keep facing is when users claim they never saw the new Terms. So we want to make a giant, splashy campaign all around the Terms. We don’t just want people to see them—we want them to WANT to see them!

“So I came up with a plan and everyone tells me it’s brilliant,” she smiles. Probably because you’re the CEO, I think, but wisely don’t say. She continues, “I want you to give me some honest feedback. It’s a two part plan.

“First, I want to create a graphic novel out of our Terms of Use. We’ll hire artists to create pages that copy other comic books, only instead of people talking or thinking or whatever they do in comic books, it’ll be our Terms instead. Since the pages will look like the most famous comic book heroes everyone will want to read it. We’ll use all the best heroes: Batman, Wonder Woman, Superman, Spider-Man, Wolverine, Madame Xanadu—the true icons of the industry!

“And then second, we’ll do something similar but with video. I know some digital artists who say they can take video clips from the hottest movies and TV shows and then alter the characters’ lips to show them reading our Terms. We’ll hire some celebrity impersonators to do the characters voices so it’ll look like these people in The Walking Dead or The Magicians or Better Call Saul are reading our Terms!”

You grimace. She notices.

“What?” she asks. “Tell me what’s wrong with that plan. Or tell me what works. Just tell me!”

You take a deep breath and tell her what you’ve been thinking.

Question Three

Another six months, another taxi drops off the MADE-UP CEO at your doorstep. Well, your landlord’s doorstep. She eyes the chair warily before sitting back down in it. You’ve been meaning to get a more comfortable chair. But you haven’t.

“I should have come to you sooner,” she starts. “Especially since you’ve given me such great advice before. But I’ve learned my lesson. We fired our General Counsel over this mess—help us fix this problem and the job is yours. I’m guessing it pays…” she adjusts herself in the uncomfortable chair, “Slightly more than your current wages.

“Our marketing team started working with the most influential users on our platform. People with tens of thousands of followers. We would connect those users with brands wanting to promote their products. It was a win-win situation, the marketing team told me.”

“Marketers,” you nod knowingly.

“Right. So we had this program. Brands pay us a few thousand dollars, we pass most of that money along to the users, and the users would post pictures and videos of themselves using the products. And we would help promote that content by giving it preferential viewing for anyone on our MADE-UP platform.

“About a dozen of the brands and the influential users in the program got some letter from the FTC. And now those brands are upset with us because we never told them about some need to disclose? Is that really a thing? I guess it is.

“Now we need to change our program so that our brand partners and influential users are following the disclosure rules. I need you to draft some kind of rules or communications or training or something so that I can make everyone understand what they need to do.

“Tell me what to do for our brands, for our users, and for my marketing department. Fix this and you’ll be our new General Counsel.”

You stand up and remove the “Social Media Fixer, Inc.” sign from the wall. You won’t be needing it anymore after you give her your advice.

Nudity + Bad Content Laws = Confusion. While not as popular as the equation E=MC², N+BCL=C is a useful equation for describing a recent decision out of the European Union dealing with copyright and social media.

Copyright and social media are frenemies at best. On the friend side, social media has given authors powerful ways of reaching audiences that were never previously possible. Many people make decent livings based on creating cartoons, movies, or audio files that are distributed via social media. On the enemy side, social media has wrecked havoc with authors’ abilities to control their creative works–the entire purpose of copyright. Find any image on the Internet, right click on it, and save the image. Odds are you just infringed on someone’s copyright. But whose copyright? And did you actually infringe it or is the author fine with you saving the image? What if you re-use that image on a Facebook post or blog article?

There are numerous issues with the (lack of) progression in our copyright laws and the rapid development of technology which easily infringes copyrights. One set of those issues deals with the ability to link to other content on social media. You may post a link on a blog post or on Facebook that can take a reader from your content directly to other content. What happens when the content you link violates someone’s copyright? The issue just became more complicated because of a recent decision by the Court of Justice of the European Union, the top appellate court for the EU. To understand the implications of that case, let’s dive into the details.

First, the good news: the case deals with nudity as I mentioned at the top. That’s usually good to keep people interested. In this case, the nudity at question were naked photos of TV personality Britt Dekker which were taken for publication in the Dutch version of Playboy. Eleven of those photos leaked prior to publication by being placed on a file hosting site.

GeenStijl (Dutch for “No Style”) is a website that posts stories about current events and scantily clad or naked women in varying ratios throughout the week. The day that the photos were leaked online, GreenStijl received an email with a link to the photos. Also on that day, Dutch Playboy, aware that the photos were online, attempted to take down the photos on the file-hosting site but also reached out to GeenStijl asking them not to post the photos.

GeenStijl did not respond to the request. Instead, the next day, GeenStijl published an article that included one of the leaked photos. They also included a link at the end of the article which directed users to the file-hosting site that had all of the photos. Dutch Playboy again wrote GeenStijl asking the article to be taken down. GeenStijl did not respond. But the web site that hosted the eleven leaked photos did respond to Dutch Playboy’s request and the photos were removed from that site.

One week later, Dutch Playboy sent another letter to GeenStijl demanding their original article be taken down. GeenStijl did not take down the original article, instead they published a new article talking about the legal dispute they now had with Dutch Playboy. The end of this second article contained a new link to another website that had the leaked photos. Dutch Playboy contacted the website hosting the leaked photos linked in the second article and that website also removed the leaked photos.

Ten days later, GeenStijl published another article with yet another link to a website hosting the leaked photos. Users of the GeenStijl site filled the comments section of the article with other links to the leaked photos on various hosting services.

All three of these articles were published prior to the actual issue of Dutch Playboy for which the photos were commissioned. Dutch Playboy brought a lawsuit against GeenStijl regarding these links that made their way through the court system before finally landing at the top appellate court.

Let’s get one thing clear: GeenStijl was a jerk in this case. That’s not to say they were, at the time and under their understanding, breaking the law. But they were definitely provoking a publication through their pattern of activities. And that’s okay–cases dealing with content and speech are often filled with jerks who help bush the boundary and test the limits of the legal system so that the rest of us non-jerks benefit from a greater understanding. But that may be important in understanding that the courts in this case may not have been inclined to help out a website acting like a jerk. Unfortunately, their decision may have punished a jerk while also muddying the waters for all legitimate social media users.

By the time the case reached the highest court there was a set of three questions that all dealt with whether GeenStijl had “communicated to the public” (or what we in the US call “distribution” which is one of the protections afforded an author of copyrighted material) by virtue of posting links to protected content. And here the court ultimately answered the questions with a rather convoluted statement (to be fair, it might be simpler in the original Dutch) which I will attempt to untangle. By the way, it’s important to note the court didn’t decide the case–rather they were asked to answer some questions and now the answers will be used to resolve the case. They said it will be hard for GeenStijl to overcome this test given the facts at hand, but another court will have to look at all the details. Here’s what the court said:

To determine if a link to protected content is a communication to the public you must first determine if the link was posted by an individual.

If the link was posted by an individual, but they did not post the link for financial gain, and they had no reason to know the linked content was protected, then it is not a communication to the public

If the link was posted by an individual for financial gain, or by a non-individual (such as a website), then there will be a presumption that the link was known to point to protected content

This presumption of knowledge about the protected nature of the content can be rebutted

Like I said, this probably makes more sense in Dutch. But for us English speakers, there are two really big problems for this kind of test to determine if a mere link to protected content is a legal violation.

Problem 1: The ruling sets up different tests depending on whether the links were made “with pursuit of financial gain.”

Copyright protections are supposed to protect authors so that we encourage people to become authors. So it makes sense to stop people posting copyrighted content without the permission of the author because that could financially injure them. If we are at all concerned about the next level of activity, other sites linking to the unauthorized posting of copyrighted content, then the motivation behind those links should be absolutely irrelevant.

The Court’s test here creates two different tests–one which applies to individuals who are posting links online but not for financial gain, other test for anyone posting for financial gain (which seems to include all websites or activity by more than one individual). These tests shouldn’t be relevant if we’re concerned with protecting the author.

Consider this hypothetical. I make a movie. It’s a really good movie with time travel and robots and aliens and a hilarious road trip in a spaceship and then there’s a big fight with a giant space-Octopus. I’m in the process of taking this movie to various festivals, maybe seeing if I can sell it to Netflix or some other distribution channel. Someone working at one of the festivals takes my movie and makes a copy, then posting it on YouTube. This person posted it on their own site and didn’t give it a descriptive title so nobody watches it. Then a website stumbles across the YouTube movie and posts it on their website under Movie You Must Watch Of The Day. A million people watch the movie and now all my interested distributors don’t want to talk to me because my movie is available for free.

At this point, I wouldn’t care one iota whether that website that posted the link is a commercial venture, newspaper, educational institution, or message forum. Their motivation for posting the link is irrelevant–I have been damaged. Granted, I’m also upset at the person who posted it in on YouTube in the first place, but if we are going to extend those protections to people who link to protected content why should we even consider their motivation? Setting up a separate test for sites based on whether they pursue financial gain (because in this day and age more sites pursue a profit than actually achieve it) doesn’t make sense from the perspective of preserving the incentive for authors.

The court’s test says that a post made for commercial gain will be presumed to know that content they are linking to is authorized or unauthorized. This presumption doesn’t make sense. From the court’s perspective, such a site should know that content is protected and should therefore have better judgement in posting links because they will know if that linked content was authorized or not.

But here’s the thing: despite certain US Supreme Court decisions hinting otherwise there is no such thing as a corporation that can exercise judgment. Corporations, websites, any organization is composed of people. So if one person can’t be presumed to know whether any piece of content on the Internet is properly authorized, how would five people running a website have that breadth of knowledge? Or even a hundred? Or a thousand? Certainly larger organizations with more resources might identify protected content and be able to ascertain if the posting was authorized, whether by virtue of more eyeballs seeing the content or being able to afford some tools to help it identify content, but none of those are perfect. Trying to substitute the pursuit of profit with having enough resources to presume knowledge of content status just doesn’t make sense in our digital world.

US law on this issue is similar but has an important difference: a website could be liable for linking to unauthorized content if it knew the content was unauthorized but there is no presumption of that knowledge simply because the website is trying to make a profit. That’s the key distinction.

Also, when the EU court made this a presumption that can be rebutted, they left open a huge loophole. Let me give you a psychic prediction on approximately 100% of the cases involving this test moving forward: the website that posted the links will say they didn’t know the content was posted without authority in an attempt to rebut the presumption. That’s 100%, plus or minus 0%. And the only websites that won’t be able to make this argument will be the ones who, like in GeenStijl’s case, were sent an actual communication by the copyright owner that the content was posted without authorization.

If that’s the court’s intent then they should have just flipped the test. Instead of presuming knowledge, make a copyright holder tell the website that posts links. If that seems like too much to ask–because why should a copyright holder have to do the extra work of telling everyone not to violate their rights–that’s because it is too much to ask. But that’s exactly what the test will ultimately end up doing.

Maybe the court just isn’t as psychic as I am.

How long this decision by the court is upheld remains to be seen. Perhaps it proves so unusable at a practical level that it is refined or reversed within the next few years. Perhaps courts try to cobble together a patchwork quilt of decisions that mostly follow this test but make it workable. But as it exists right now there are serious problems applying this test to Facebook, Twitter, Google, or any site that hosts a blog (Hey WordPress, what’s up?). And there are even bigger ramifications for those hosting platforms on trying to set up a process to handle this new test. Right now, websites that host content are accustomed to having a process where copyright onwers can assert ownership and take down offending content. Will that system need to be expanded to then impact other sites that link infringing works? Will a failure to do so make these sites contributing to the unauthorized communications to the public, allowing an additional expansion of copyright protection?

The EU’s decision is too recent to see how it will play out, but keep your eyes peeled. This could get ugly fast. Although the court may have been swayed by not wanting to let GeenStijl get away with being a jerk, they may have inadvertently overcorrected the issue and caused more problems than they solved.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law. Having just submitted my grades today, I’m now pleased to share with you this year’s final exam. I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months. Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career. Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books. (Go with me, people.) For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic. They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas. Nutshells get right to the point and provide essential information on the overall legal topic. I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section. Can you spot it?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic. My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom. His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now. There isn’t a wealth of case law on social media issues, but there are certainly cases out there. In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t. Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me. He’s just a more talented and better looking version of me who can also sing and dance and has a better accent. The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest. Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts. When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering. I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value. To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way. An even bigger thanks to my family for putting up with my little side projects.

You always remember your first keynote. So I’ve been told. And so far, that’s true. I’ve spoken at conferences, chaired conferences, led panels and participated on them. I’ve taught one-off classes and an ongoing Law and Social Media class at the University of Texas School of Law. But this past January was a big milestone for me as I was invited to deliver the keynote address at the Charleston Law Review’s annual symposium. The year before, their keynote speaker was retired Supreme Court Justice Sandra Day O’Connor. I figured she was an acceptable opening act for me.

It actually took me a while to decide what to speak about–there are so many great subjects within social media and the law (hence this blog). So I cheated a bit and instead of picking one topic I picked seven. Actually a bit more than seven but I organized these subjects around seven stories of social media legal risk.

The symposium was fantastic. A great venue in the Charleston Music Hall (I’ve never spoken in a room with a balcony except my own living room and that’s mostly to tell my boys to come downstairs). And a great schedule with four other panels dealing with social media and the law, but not marketing–typically the majority of social media law talk is about marketing. It was refreshing to see a symposium with panels on employment issues, your digital afterlife (what happens to your accounts after you die), privacy, and legal ethics. Fantastic speakers, materials, and very well organized. Total package.

Charleston Law Review ended up posting the video of my keynote. I’ve embedded the YouTube video of my keynote below in case you have 55 minutes or so to kill and want to fill it with some fun social media stories. And below that is an embed of my slides because I use slides a lot but you can’t see them in the video. So you’ll just have to click along yourself to see all the fun.

2014 legal risks include the very real possibility that you drop a crystal ball on your foot. This will hurt.

I’ve been privileged enough to be connected with a variety of brilliant, articulate social media attorneys around the country. Recently one of them asked the group for their top social media legal concerns (not necessarily those of their respective employers) and in great blogging tradition I thought “I can totally steal that and make a blog post out of it!” But, being all lawyerly, I asked for their permission first. And then I turned it into a list because the moment you put a number on something the lizard part of your brain takes control of your clicking finger and you cannot resist. You know it’s true.

All links are provided by me to help provide some context or background or additional reading. But I didn’t make any links a numbered list because then you’ll never come back.

Without further obligatory filler text, here are the top 2014 social media legal concerns. Read the whole thing and you’ll get a special bonus at the end. It’s like the extra scene at the end of a Marvel movie except there’s no Nick Fury. Probably.

1. Use of Other’s Content

Jim Dudukovich, Coca-Cola (and proud Vespa owner): The recent $1.2MM jury verdict in favor of Daniel Morel regarding the use by Getty and Agence France-Presse of photographs Mr. Morel had posted to Twitter regarding the Haiti earthquake could be a seminal case regarding the danger of relying on a platform’s terms of service to re-use others’ content; the fact that the media was held liable certainly doesn’t bode well for marketers, who are not entitled to as great a license as the press.

Ryan Garcia, Dell: This is a big one because there are two areas where clients can get confused. First, when content is marked “Public” by a platform that doesn’t mean the information is truly public. At least not all the time. Sometimes it means that, mostly it means the content can be freely shared within that platform. Second, the convergence of social platforms such as Facebook purchasing Instagram leads some people to think that the content can be freely shared between platforms and that’s just not the case. They are both teachable moments but you have to remove that misunderstanding quickly.

2. Changing Promotional Rules

Chris Irving, Publishers Clearing House: Keeping abreast of ever changing Facebook promotional rules and making sure Marketing understands the “relaxed rules” are not an invitation to do everything and anything.

Jim Dudukovich, Coca-Cola: Although this one goes in the opposite direction from Facebook’s, imposing greater restrictions on marketers’ ability to conduct promotions on the platform [Pinterest].

3. Disclosures for the Convergence of Social with Mobile

Brian Abamont, State Farm: How do companies go about ensuring compliance with all of the disclosure and notice expectations, not just in terms of actually including them but also the expectations as to how they are presented in a form factor that puts real estate at a premium and has more limited presentation capabilities (e.g. just in time notification and proximity of disclosures to content). How can this be addressed with little standardization across the mobile OS environments for these types of things?

Brian Abamont, State Farm: I would also place a strong “seconded” support behind Chris’ point about privacy and add that the rules are changing at a rapid pace across not just federal/national levels but also various states and provinces across North America and the rest of the world. Furthermore, in some cases, the rules have been created after an alleged offense and seemingly applied retroactively, at a minimum from a reputational standpoint.

Daniel S. Goldman, Mayo Clinic: Probably less a legal issue (at present), though I think there will be increasing regulation over time. I think the issue is the public’s increasing concern about the data that is being collected/monetized by social platforms and by commercial entities and what can be divined about them from that data. This plays out across many spectrums. The most obvious is the negative reaction to targeted/behavioral ads, but also reflects a concern about analytics that is done on data that is collected (e.g. the “Target Article”). I think there is a growing public perception that there is a digital “permanent record” about all of us that companies are mining to sell them stuff.

5. Fraud Fighting

Chris Irving, Publishers Clearing House: Expanding efforts to fight scammers and fraudsters on the internet who would use our name to deceive. Efforts include enhanced consumer education, public private partnerships and supporting stronger criminal penalties in Jamaica where a majority of these scams are originating.

6. Increased Attention to “Commercial Creep” and Transparency

Jim Dudukovich, Coca-Cola: This manifests itself in a few ways, from the FTC’s workshop on native advertising and the search for answers as to what consumer expectations are and the scope of consumers’ ability to distinguish between editorial/creative content vs. sponsored content/branded integration, to the NY AG’s “Operation Clean Turf” (investigating and penalizing the practice of publishing fake reviews). Not to mention the attention the NAD has placed on native advertising/transparency (eSalon and Mashable/Qualcomm).

7. Social Behavioral Advertising

Brian Abamont, State Farm: Typically, [behavioral advertising] has applied to web based activities and were easily covered by privacy policy and “About our Ads” information pages. As the level of information from social is much deeper than a typical web site visit and marketers looks to make more advanced use of that information, how do businesses present proper consent/disclosures in the social platforms?

8. Reputational Public Relations and Marketing on Social Media

Jim Dudukovich, Coca-Cola: We’ve seen more and more instances in which the speed of social media marketing has trumped judgment, and major brands, either directly or through agencies, and sometimes even accidentally, have pushed out messaging that they later regretted (and perhaps wouldn’t have published had they engaged in a more rigorous internal review process).

Jessica Fredrickson, Walmart: Blurred lines between marketing and reputational PR. Our clients are increasingly using reputational “advertising” to promote our good works (#RealWalmart). Whether these messages translate into sales isn’t clear and how these messages should be managed through a review process and with appropriate disclaimers is not consistent.

9. Changes to TCPA Express Written Consent Rules

Chris Irving, Publishers Clearing House: Providing internal guidance to clients on the changing TCPA consent requirements applicable to text messaging campaigns as well as the necessary vetting for third party ads appearing on our sites where there is phone collection.

10. Crowdfunding

Ryan Garcia, Dell: The JOBS Act changes continue to come in and we have a market where many more people are comfortable with Kickstarter and other crowdfunding platforms. The possibility of actual equity investment for the masses, as opposed to paying for items that help fund a project, has huge positive and negative ramifications. People getting upset over late deliveries for a Kickstarter project are one thing–thousands of equity investors being upset over the direction of a brand new company is another altogether. Here’s a longer post on the subject from Perkins Coie.

And here’s your bonus as promised in the headline (and at no extra charge to you!). Here’s a list of the top social media legal issues as presented by Mark Bisard (here’s his Twitter because he’s social!), social media and general digital guru for American Express. These are all the details he provided or else he could have been incorporated into the main list, but instead it’s a bonus list for you. And there’s 16 things here, which makes it approximately 60% longer than the list above! Enjoy and happy holidays!

Year of the Hashtag

Selfie is word of the year (see reputational risk parallels with Obama photo)

Internet of Things (TRENDnet and FTC workshop)

Virtual Currencies (Largely BitCoin but also push to have VC like Farmville regulated like other FIs)

You will care about our privacy or we will make you disappear. And we’ll sing Justin Bieber while doing it.

The United States ranks privacy concerns somewhere between finding Pinterest projects we can actually pull off and how long is the line for Cronuts. We just don’t care much about privacy compared to the rest of the world. That’s true from both the government’s perspective (not just the latest NSA issues, or non-issues depending on how you look at it) and the view of the public who’ve collectively shrugged over a variety of privacy concerns. We’re a far cry from Europe where they have documented not one but two different Fundamental Rights that discuss privacy in a digital age:

There are two notable exceptions to our lack of privacy interest. First is medical information, because nobody needs to know about that mole. Second is anything involving The Children. Because we believe The Children are the future. Secure their privacy and let them lead the way. Show them all the Instagrams they possess inside.

When it comes to meaningful privacy legislation, unless it involves medical information or The Children, it just doesn’t happen. So it isn’t too big of a surprise that two bills pending in the California state legislature are dealing with social networking privacy and The Children. SB-501 deals with collecting personal information from The Children on social networking sites and will require sites to remove any collected information within 4 days of a request. That bill is far less interesting than the other one currently working through committees.

California bill SB-568 has the super-sexy title of “Privacy: Internet: minors.” Or, as all the cool kids are calling it, P:I:m. The bill tackles two issues–not marketing certain products to minors (such as guns, alcohol, and spray paint–which means your idea to launch a website that tries to get kids to drink vodka while packing heat and then go tag a building is totally not cool) and forcing social networking sites to remove content posted by a minor upon request.

The second issue is one we’ve heard before. The Children are young, you see, and so we should give them the ability to remove those embarrassing duckface photos they’ve been posting for the past year. As soon as they realize how embarrassing they are. Unfortunately, this somewhat noble goal isn’t really addressed by P:I:m because of some giant loopholes in the law.

The first giant loophole is that while the original content can be taken down, any reposted content by another party is not subject to the request. So the moment someone shares that photo or copies it to their own pages/files, all control is gone. While other sections may force that photo to not be identified with the person making the request, the content itself will still remain online.

The second giant loophole is that these requests will not need to be honored if the platform provides a way for the user to remove the content themselves. If The Children can’t read the manual, this law doesn’t help them. And are there any platforms still out there that don’t allow you to remove your own content.

The third giant loophole isn’t as much a loophole as a design flaw–it only applies to requests by minors. Yes, we will protect The Children but only up until the day they are 17 years and 364 days old (or 365 for those rare Leap Babies, unless they insist on being 1/4th of their actual age in which case they are annoying and will lose all protection). The moment they turn 18 years old then they are ousted from The Children faster than David Lee Roth is kicked out of Van Halen (again). This may not be a loophole, but it is a strange design decision to only offer some protection to The Children while they are still one of The Children.

And ultimately, given these three loopholes, who is this law protecting? Any truly embarrassing content will be reposted by others, or it will be on a platform where you can delete your own copy, or by the time you are embarrassed by it you are likely over 18. In any of these cases the law won’t help you, so who will it help?

I tried to ask the author of the bill who he thought would be protected by this new law. I thought it was a relevant question since, even though it’s only a state law, it will likely have national implications since California is a big state (and has the headquarters of some big social networks whose names rhyme with Schmacebook, Schmitter, Schminterest, SchminkedIn and Schmoogle). Unfortunately, I can’t. You see, although the bill’s author Senator Steinberg is concerned about The Children and social networking, his website only allows you to contact him if you live in his district.

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.